Catrett v. State, 1 Div. 85.

• Citation: 25 Ala.App. 331,146 So. 287
• Decision Date: 14 February 1933
• Docket Number: 1 Div. 85.
• Parties: CATRETT v. STATE.
• Court: Alabama Court of Appeals

146 So. 287

25 Ala.App. 331

CATRETT v. STATE.

1 Div. 85.

Court of Appeals of Alabama

February 14, 1933

Appeal from Circuit Court, Baldwin County; F. W. Hare, Judge.

Robert alias B. B., Catrett was convicted of murder in the second degree, and he appeals.

Reversed and remanded.

Hybart Heard & Chason, of Bay Minette, for appellant.

Thos. E. Knight, Jr., Atty. Gen., for the State.

BRICKEN Presiding Judge.

This appellant was indicted for killing one Bartholomew Cauley under such circumstances as constituted murder in the first degree. The indictment contained one count which charged that he (appellant, naming him), unlawfully and with malice aforethought, killed Bartholomew Cauley, by shooting him with a gun, etc. The indictment was in proper form and substance.

The trial in the lower court resulted in the conviction of the accused for the offense of murder in the second degree, the punishment being fixed by the jury at imprisonment for ten years. He was duly sentenced by the court in accordance with the verdict to ten years' imprisonment in the penitentiary.

Appellant by a supplemental insistence, claims there is manifest error upon the record because it fails to set out or contain the order of the court commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular juries for the week set for the trial of this case; and that the record fails to show that in open court the court drew from the jury box the number of names required, etc. In this connection appellant insists that the provisions of section 8644, Code 1923, are mandatory, and cites the case of Morris v. State, 146 Ala. 66, 41 So. 274; also the case of Roan v. State (Ala. Sup.) 143 So. 454. The orders required of the lower court in this connection are mandatory as held in innumerable decisions of the appellate courts of this state, but in this case there is no insistence that the court below failed in any manner to make and enter every necessary order provided for in section 8644 of the Code 1923; this contention is confined to the question only that such orders do not appear in the transcript of this appeal.

The law now is, where no question was raised before the trial court as to the order of the court for the special venire, or as to fixing the day for the trial of defendant, the transcript on appeal should not contain such matters. In the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal. Such are the express terms of the statute. Section 3249, Code 1923. See, also, Supreme Court Rule 27; Paitry v. State, 196 Ala. 598, 72 So. 36; Johnson v. State, 205 Ala. 665, 89 So. 55; Anderson v. State, 204 Ala. 476, 85 So. 789; Charlie v. State, 204 Ala. 687, 87 So. 177; Vann v. State, 207 Ala. 152, 92 So. 182.

In this case the evidence, without dispute, disclosed that Cauley, the deceased was found dead in an isolated place in Baldwin county, and that his death was the result of a shotgun wound, and that deceased had been shot directly in his back.

The evidence adduced upon the trial against this appellant was entirely circumstantial, and it is insisted by his counsel it was insufficient to support a conviction, that it was so vague and uncertain as to hardly create a suspicion against him, and hence the state failed to meet the burden of proof necessary to a conviction in all criminal cases. There was some evidence tending to show the proximity of appellant at the time and place when and where the killing occurred. There was also evidence that a few tracks were found near the place of the killing, the closest of these to the body was shown by the evidence to be about forty or fifty feet below where the body was found, and this evidence, in our opinion, was sufficient to go to the jury on the question as to whether the tracks were those of the accused. There was nothing to show when the tracks were made or that the person who made them was the one who fired the fatal shot. The state undertook to show flight of the appellant; but it is strenuously insisted that the so-called flight was fully and conclusively explained, as the accused had a right to do under the law. The state also offered some evidence tending to show that some three years prior to the trial in this case that this appellant was prosecuted in the justice of the peace court for violating the game law, to which charge appellant interposed a plea of guilty in the justice court, and that deceased was a witness against this appellant, defendant in said case. And further that some two or three weeks after the trial in the justice court appellant and deceased had some words in front of the post office. As to this occurrence appellant testified: "He plead guilty in the Justice Court for violating the game law; that Cauley was the principal witness against him; that he didn't get mad with him because of that prosecution; had some words with him in front of the Post Office; that was about three years ago; that since that time Cauley had helped him drive some cattle, spoke to him a number of times in passing; that they lived in the same neighborhood about two miles apart; that he had no ill will towards Mr. Cauley."

We have given careful, attentive consideration to the entire record in this case and to every incident of the trial as shown by the transcript. We think the most incriminating evidence allowed upon the trial of the court below was the map prepared by one B. F. Albin, a state witness; the map being allowed in evidence over the objection and exception of appellant. This diagram or map with its indicia, notations and characters, operated in effect as a perfect picture of the homicide complained of and a portrayal of the killing in line with the theory and insistences of the prosecution. This witness Albin admitted he knew nothing whatever relative to the killing of Cauley, or the locus in quo of the offense, and that he prepared the map solely upon information given him by other parties in the absence of appellant. This map showed in detail practically every fact upon which the state relied for a conviction, and was...